State v. High , 282 P.3d 1046 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20100668‐CA
)
v. ) FILED
) (July 6, 2012)
Lonny High, )
) 2012 UT App 180Defendant and Appellant. )
‐‐‐‐‐
Fourth District, Provo Department, 091403144
The Honorable Lynn W. Davis
Attorneys: Matthew R. Morrise and Margaret P. Lindsay, Provo, for Appellant
Mark L. Shurtleff and Andrew F. Peterson, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges McHugh, Thorne, and Christiansen.
McHUGH, Presiding Judge:
¶1 Lonny High appeals his conviction for aggravated assault with an “in concert”
enhancement, a second degree felony, see Utah Code Ann. § 76‐5‐103 (2008); id. § 76‐2‐
202; id. § 76‐3‐203.1 (Supp. 2011), and riot, a third degree felony, see id. § 76‐9‐101
(2008).1 We affirm.
1
Since the events giving rise to the charges in this case, the Utah Legislature has
made material changes to the aggravated assault statute. Therefore, we cite the version
(continued...)
BACKGROUND2
¶2 On October 24, 2009, High, Saul Cristobal,3 and an unidentified third individual
(the Third Man), assaulted two brothers (Big Brother and Little Brother). That evening,
Big Brother and his friend (Friend) were longboarding on the Provo River Parkway (the
Trail). High, Cristobal, and the Third Man, who were also on the Trail, chased Friend
and pulled him off his longboard. Eventually, Friend and Big Brother left without
further incident.
¶3 Later that night, around 10 p.m., Big Brother was riding his longboard down the
Trail alone and again saw the three men. As he passed, one of the men asked Big
Brother, “What you looking at?”
¶4 Approximately one hour later, Big Brother and Little Brother met on the Trail to
walk home. Despite Big Brother’s urging to take a different route, Little Brother
decided to proceed on their normal path along the Trail. Little Brother was on foot and
Big Brother was riding his longboard. Soon thereafter, on a portion of the Trail adjacent
to a road, the brothers came across High, Cristobal, and the Third Man, who were
walking toward them. High and Cristobal left the Trail, and crossed to the far side of
1
(...continued)
of that statute in effect when the alleged offense occurred. Compare Utah Code Ann. §
76‐5‐103 (2008), with id. § 76‐5‐103 (Supp. 2011). Because the legislature has not made
any substantive changes to the provisions of the other statutes discussed in this opinion,
we cite the current version of the Utah Code with respect to all statutes except the
aggravated assault statute.
2
We state the facts “in a light most favorable to the jury’s verdict” and “present
conflicting evidence only as necessary to understand issues raised on appeal.” See State
v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (internal quotation marks omitted).
3
High and Cristobal were tried together and the jury found them both guilty.
Cristobal has also appealed his conviction and we issue our decision in that matter as a
companion case to this opinion. See State v. Cristobal, 2012 UT App 181.
20100668‐CA 2
the road, while the Third Man walked past the two brothers. When the Third Man
whistled, High and Cristobal returned to the Trail and the three began following the
brothers. Big Brother informed Little Brother that these three men had confronted him
earlier that night. The brothers paused on two occasions to ask the three men to stop
following them. During the second exchange, Big Brother referred to the three men as
“wannabe gangsters.”
¶5 As the two brothers turned to continue on their way, Cristobal picked up a rock
and ran at Big Brother with it, while the Third Man attacked Big Brother with what
appeared to be a stick. Big Brother curled up into a defensive position just before
Cristobal slammed the rock into the side of his head and the Third Man beat him with
the stick. High also participated in the altercation, during which the Third Man hit
Little Brother on the head with the stick. As the three assailants left the scene, they
shouted “PVL,” an acronym for the “Provo Varrio Locotes” gang, and “flash[ed] the
signs,” to let the brothers know “that’s who did it.” The assault left Big Brother
bleeding from a head wound.
¶6 The brothers called the police and positively identified High and Cristobal as two
of the three the men who had assaulted them. The State charged High and Cristobal
with riot and aggravated assault committed in concert with two or more persons.
Neither defendant requested a separate trial.
¶7 Before trial, the State disclosed that it planned to introduce gang evidence,
including that High and Cristobal had been convicted for assault in concert with two or
more persons for a May 20, 2009 altercation on the Trail. After briefing and argument,4
the trial court ruled that some of the gang evidence was admissible and reserved ruling
on the admissibility of the other gang evidence. During trial, High and Cristobal
announced their decisions to testify, and the trial court provided the parties another
opportunity to be heard on the admissibility of the gang evidence. Ultimately, the trial
court ruled that the fact both defendants were felons could be introduced, but the
details of the convictions could not due to their similarity to the circumstances of the
instant charges. The court also decided that because there had already been evidence
that High had “PVL” tattooed on his hand and that the defendants yelled “PVL” as they
4
We discuss the trial court’s consideration of the arguments related to the
admission of the gang evidence in more detail later in this opinion. See infra ¶¶ 32‐38.
20100668‐CA 3
fled, the State could ask questions about “how long [the defendants had] known each
other and in what capacity, and whether or not they [were gang] members.” When
asked for clarification, the trial court instructed the State “to exercise some caution” and
invited the defendants to object if the State went “too far.”
¶8 High and Cristobal both testified that they had acted in self‐defense when the
brothers attacked them without provocation. They indicated that their first encounter
with Big Brother came while they were “hang[ing] out” on the Trail.5 High and
Cristobal testified that they told Big Brother and Friend not to pay attention to the Third
Man, whom they claimed not to know, because he appeared to be intoxicated and had
approached Big Brother and Friend. When they next saw Big Brother, he rode his
longboard past them, and no words were exchanged.
¶9 High and Cristobal testified that the Third Man was not present when they again
encountered the brothers a short while later. High, who had walked across the street to
go his separate way, saw the brothers approaching Cristobal on the Trail. Because all
three then stopped, High returned to learn what was happening. Both High and
Cristobal reported that Big Brother was armed with a pool cue and taunting Cristobal.6
High testified that Big Brother raised the pool cue and “looked like he was getting ready
to come at [them].” To defend himself, High picked up a rock as Big Brother rushed at
him. High hit Big Brother with the rock, causing Big Brother to drop the pool cue. High
grabbed the pool cue and hit Big Brother with it. Then Little Brother grabbed High, so
High responded by hitting Little Brother with the cue. Cristobal testified that he did not
participate in the fight but was “watching everything.” After the fighting was over,
High exclaimed to Cristobal, “[I]t’s PVL,” because he was “all pumped up.”
¶10 At trial, High admitted that he was a member of the PVL gang, and also showed
the jury his “PVL” tattoo. The defendants explained that they had been members of
PVL together for about four years. Although High remained an active member of the
gang, they both claimed that Cristobal had disavowed his affiliation two or three
months before the altercation.
5
High and Cristobal indicated that they first encountered Big Brother around 11
p.m. and that the altercation occurred about thirty minutes later.
6
The police later found a broken pool cue at the scene of the incident.
20100668‐CA 4
¶11 On cross‐examination, High stated that PVL stands for “Provo Varrio Locotes,”
which translates in English to “Provo Neighborhood Crazies.” The State asked High,
“what does [PVL] do; what is it about?” High answered, “A street gang,” and his
attorney objected. The trial court permitted the testimony and allowed the defendants
to register a continuing objection to that line of questioning. The State then elicited
additional testimony about PVL’s and High’s activities.7
¶12 At the close of evidence, High memorialized his objection to the Gang Activity
Evidence and moved for a mistrial. The trial court denied the motion for mistrial,
ruling that by testifying, High and Cristobal had opened the door to “some threshold
inquiries as it relates to the organization [PVL] itself.” The trial court concluded that the
State’s questioning did not go “beyond the direction of the Court” in response to the
pretrial and in limine motions. However, the court did give an instruction limiting the
jury’s use of all of the gang related evidence.8
7
We refer to all of the evidence admitted after High’s objection as the “Gang
Activity Evidence” to distinguish it from the evidence admitted without objection,
which we refer to as the “Gang Affiliation Evidence.”
8
The limiting instruction stated that the First Amendment guarantees the right to
peaceably assemble and explained,
This Court has allowed you to hear evidence that
Defendants have associated with others who describe
themselves as P.V.L. Such associations are not inherently
illegal. You may consider such evidence only for the
purpose of determining, beyond a reasonable doubt,
whether the State has proved each element of each crime
charged . . . . Such evidence was not offered to prove and
you are not allowed to consider such evidence as proof that
either Defendant is prone or inclined to commit crimes
generally or the crimes charged in this case specifically.
Neither Defendant’s character traits are relevant in this trial.
It is admissible however to show motive, opportunity,
intent, preparation, plan, knowledge, or identity.
20100668‐CA 5
¶13 During closing argument, the State did not mention the Gang Activity Evidence.
The State focused on credibility instead, arguing that the testimony of Little Brother and
Big Brother was more reliable than that of the defendants. The jury found High and
Cristobal guilty of both riot and aggravated assault, and also found that they had acted
in concert. High filed a timely appeal to this court, challenging his conviction.
ISSUE AND STANDARD OF REVIEW
¶14 On appeal, High claims that the trial court exceeded its discretion by admitting
evidence of his other bad acts. Specifically, High challenges the admission of the Gang
Activity Evidence. We will reverse a trial court’s decision to admit evidence of other
bad acts only if the trial court exceeded its discretion, see State v. Widdison, 2001 UT 60,
¶ 42, 28 P.3d 1278, and the error was harmful, see Butler v. Naylor, 1999 UT 85, ¶ 9, 987
P.2d 41.
ANALYSIS
¶15 High does not challenge the trial court’s pretrial ruling or the Gang Affiliation
Evidence. Indeed, High concedes that the Gang Affiliation Evidence was probative of
the three assailants’ relationship and their “alleged collusion.”9 See State v. Toki, 2011
UT App 293, ¶ 45, 263 P.3d 481 (holding that “shared gang affiliation” is “highly
probative” to show codefendants acted “in concert”), cert. denied, 272 P.3d 168 (Utah
2012); see also United States v. Brown, 200 F.3d 700, 708‐09 (10th Cir. 1999) (holding that
gang affiliation evidence was relevant to “identity, joint venture and existence of a
conspiracy” and that “gang affiliation illuminates the relationship between [a witness]
and the [d]efendants”); United States v. Thomas, 86 F.3d 647, 652 (7th Cir. 1996) (“Gang
9
The “in concert” enhancement requires proving that “the defendant was aided
or encouraged by at least two other persons . . . and was aware of this aid or
encouragement” while each other person “was physically present” or “participated as a
party to [the] offense.” Utah Code Ann. § 76‐3‐203.1(1)(b) (Supp. 2011). As charged,
“riot” required proving that High assembled with “two or more other persons with the
purpose of engaging . . . in tumultuous or violent conduct, knowing, that [the other
persons had] the same purpose.” Id. § 76‐9‐101(1)(b) (2008).
20100668‐CA 6
affiliation is particularly relevant, and has been held admissible, in cases where the
interrelationship between people is a central issue.”). Rather, High contends that the
Gang Activity Evidence that was related to his previous participation in gang fights and
the fact that status within PVL is attained through violence should have been excluded
under rule 404(b) of the Utah Rules of Evidence.10
I. The Gang Activity Evidence Is Properly Considered Under Rule 404(b)
¶16 Rule 404(b) governs the admission of evidence of “crime[s], wrong[s], or other
act[s]” committed by the defendant. See Utah R. Evid. 404(b).11 Such evidence is
admissible if it is offered for a proper, noncharacter purpose, if it is relevant under rules
401 and 402 of the Utah Rules of Evidence, and if its probative value is not substantially
outweighed by the danger of unfair prejudice under rule 403 of the Utah Rules of
Evidence. See State v. Nelson‐Waggoner, 2000 UT 59, ¶¶ 17‐20, 6 P.3d 1120.
¶17 As a threshold matter, the State argues that the Gang Activity Evidence is not
governed by rule 404(b) because it relates only to High’s affiliations and not to his
actions. According to the State, “[t]here are some aspects of the human condition that
are not aptly captured by the phrase ‘crimes, wrongs or acts.’” See 1 Christopher B.
Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:28 (3d ed. 2007). In support, the
10
For the convenience of the reader, we cite the current version of rule 404 and
other rules of evidence, which were amended “stylistically” in 2011. See generally Utah
R. Evid. 404, 2011 advisory committee’s note (“There is no intent to change any result in
any ruling on evidence admissibility.”). Because the federal versions of the rules cited
in this opinion remain substantially the same as the Utah versions, we consider
decisions interpreting the federal rules informative. See State v. Webster, 2001 UT App
238, ¶ 22 n.1, 32 P.3d 976 (“Since the advisory committee generally sought to achieve
uniformity between Utah’s rules of evidence and the federal rules of evidence, this
court looks to the interpretations of the federal rules by the federal courts to aid in
interpreting the Utah rules.” (brackets and internal quotation marks omitted)).
11
“Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in conformity
with the character . . . . This evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Utah R. Evid. 404(b).
20100668‐CA 7
State relies on Somee v. State, 187 P.3d 152 (Nev. 2008). However, the facts of that case
are distinguishable from those at issue.
¶18 In Somee, the prosecution offered evidence of the defendant’s admission to police
officers “that he was a member of the Horney Boyz gang and that officers had
previously found him in possession of weapons.”12 See id. at 157. Somee objected under
a rule similar to rule 404(b) on the ground that the evidence was impermissible
character evidence. See id. at 157, 160. The trial court allowed the evidence of Somee’s
gang affiliation to be introduced and the jury convicted him. See id. On appeal, Somee
claimed that the police officers’ testimony about his gang affiliation was improper
character evidence that should have been admitted only with a contemporaneous
limiting instruction, as required by Nevada precedent regarding evidence of prior bad
acts. See id. at 160. After reversing and remanding for a new trial on other grounds, the
Nevada Supreme Court indicated that the evidence of Somee’s gang affiliation “was not
character evidence” and that it therefore did not need to reach the question of whether
the trial court should have given a limiting instruction at the time the evidence was
introduced. See id. at 160‐61.
¶19 While Somee does provide support for the proposition that evidence of a
defendant’s membership in a gang is not properly examined under rule 404(b), the state
has pointed us to no authority from Utah deciding this matter.13 Moreover, a number of
jurisdictions that have considered the matter have concluded that membership in a
gang does constitute evidence of other crimes, wrongs, or acts governed by rule 404(b).
See, e.g., Hoops v. State, 681 So. 2d 521, 530 (Miss. 1996) (“It would be folly for this Court
to hold that affiliation or membership with a street gang such as this one does not
12
Although the fact section of the opinion states that the trial court admitted
evidence that Somee had previously been found in possession of weapons, there is no
discussion of that evidence in the analysis. See Somee v. State, 187 P.3d 152, 157, 160‐61
(Nev. 2008).
13
While this court has not examined whether gang affiliation by itself is an “other
act,” it has, without discussion, included gang affiliation in a 404(b) analysis that also
included evidence that the defendant had been in prison, been on parole, had a history
of domestic violence, and had allegedly solicited another person to threaten the victim.
See State v. Pedockie, 2008 UT App 417U, paras. 2‐8 (mem.).
20100668‐CA 8
constitute a bad act as contemplated by Miss. R. Evid. 404(b).”); Utz v. Commonwealth,
505 S.E.2d 380, 384 (Va. Ct. App. 1998) (analyzing gang affiliation under Virginia’s prior
bad acts standard because “a juror might associate a defendant with such an affiliation
as a person of bad character or someone prone to aggressive or violent behavior”). But
see United States v. Hodges, 315 F.3d 794, 801 (7th Cir. 2003) (“Without any testimony of
particular prior bad acts Hodges participated in as a gang member, we find that
evidence of his mere affiliation with the gang does not fall under Rule 404(b).”).
Nevertheless, we need not resolve today the State’s contention that membership in a
gang alone does not constitute evidence of “a crime, wrong, or other act,” see Utah R.
Evid. 404(b)(1), because the evidence to which High objects goes beyond his
membership in PVL.
¶20 Trial counsel made no objections to the State’s cross‐examination of High until it
asked, “[W]hat does [PVL] do; what is it about?” High answered, “A street gang.” At
that point, High’s attorney immediately objected to that question and the similar ones
that followed. The trial court allowed the testimony, which proceeded as follows:
[State:] Is there a territorial boundary for PVL?
[High:] Provo.
[State:] Okay, does the organization do anything to be able
to protect or to be able to assert itself within that
boundary?
[High:] We have conflicts with rival gangs.
[State:] “Conflicts,” meaning?
[High:] Fights.
[State:] Fights?
[High:] Yeah.
[State:] Willingly coming together to meet a rival gang to
fight?
[High:] Yeah.
[State:] Do you understand that that’s probably illegal?
[High:] Yeah.
[State:] But the organization doesn’t have a problem with
that?
[High:] No.
20100668‐CA 9
[State:] So you participated in that kind of similar activity
before?
[High:] Yeah.
[State:] So the organization exists to fight rival gangs?
[High:] Yeah.
....
[State:] Sounds like to be a member of PVL you’ve got to be
kind of a tough guy, right?
[High:] I wouldn’t say that.
....
[State:] Are there . . . differing degrees of people within
PVL, or is everybody . . . pretty much equal?
[High:] Pretty much equal.
[State:] Is there any status at all within PVL? . . . Is there
anything that would give you [any] kind of status
within PVL?
[High:] Just the like all the fighting and stuff.
[State:] Okay.
[High:] Just stuff you do.
[State:] So the more that you do or the braver you are or the
more aggressive you are, that gives you status?
[High:] Yeah.
[State:] You’ve been in there for like four years?
[High:] Yeah.
Unlike in Somee, where the evidence considered on appeal was limited to the fact that
the defendant was a gang member, see Somee, 187 P.3d at 157, the testimony here
implicated High in other crimes, wrongs or acts, both by inference and by admission.
¶21 High indicated that “we” fight other gangs, that he understands that this is
probably illegal, that he has participated “in that kind of similar activity before,” and
that the gang members gain status through fighting and aggressive behavior. High’s
participation in prior gang fights and the fact that he knowingly engaged in illegal
activity, including fighting and aggressive behavior, is the type of evidence of “a crime,
wrong, or other act” contemplated by rule 404(b) of the Utah Rules of Evidence.
Compare State v. Nielsen, 2012 UT App 2, ¶¶ 7‐22, 271 P.3d 817 (analyzing evidence
20100668‐CA 10
presented in a preliminary hearing of the previous death of an infant while sleeping
with parents under rule 404(b)), with State v. Cammack, 2004 UT App 380U, para. 3
(mem.) (holding that evidence of the defendant’s reluctance to contact authorities was
not governed by rule 404(b)).
II. The Gang Activity Evidence Is Not Intrinsic to the Crime Charged
¶22 We also reject the State’s alternative assertion that rule 404(b) is inapplicable
because the evidence is intrinsic to the crime charged. The evidence that High has
previously fought with rival gangs over territory, that one of PVL’s purposes is to
engage in such fights with rival gangs, and that High understands that such conduct is
likely illegal is not “inextricably intertwined” with the assault alleged in this case
because there was no evidence presented that either Little Brother or Big Brother was a
member of a rival gang. Consequently, we examine High’s claim of error concerning
the Gang Activity Evidence under rule 404(b) of the Utah Rules of Evidence.
III. Evidence Relating to a Defendant’s Gang Membership Is Not Presumptively
Inadmissible
¶23 Evidence that the crime charged is related to the activities of a gang or a person’s
gang membership has long been admitted in Utah. See State v. Gallegos, 16 Utah 2d 102,
396 P.2d 414, 416 (1964) (relying on evidence that a killing was the product of a conflict
between rival gangs to conclude that the evidence could not support a defense that the
defendant acted “in the heat of passion”). In some instances where this has occurred,
Utah appellate decisions do not reflect any objection to the evidence at trial. See id.; see
also State v. Montoya, 2004 UT 5, ¶¶ 2‐6, 84 P.3d 1183 (reciting that a witness to a
shooting recalled the defendant throwing hand signs and “yelling ‘VLT,’ which [the
witness] understood to be a gang reference”); State v. Harrison, 805 P.2d 769, 771 (Utah
Ct. App. 1991) (reciting that a shooting occurred between “two groups of people who
had been posturing as if they were members of rival street gangs.”).14 Where the gang
evidence has been challenged, a number of our rulings have been issued in unpublished
14
In State v. Harrison, 805 P.2d 769 (Utah Ct. App. 1991), we held that the
defendant, a member of the Bloods gang, should have been permitted to introduce
evidence that the Crips gang had firebombed his car. See id. at 780‐81. However, we
affirmed the conviction because the error was harmless. See id. at 781, 789.
20100668‐CA 11
memorandum decisions. See, e.g., State v. Milligan, 2010 UT App 152U, paras. 4‐5
(mem.) (holding that the trial court did not exceed its discretion in admitting gang‐
related evidence probative of a key witness’s fear of retaliation, and that any error in
admitting gang discipline evidence was harmless), cert. denied, 238 P.3d 443 (Utah 2010);
State v. Pedockie, 2008 UT App 417U, paras. 9‐10 (mem.) (holding that gang evidence was
properly admitted where it explained “the circumstances around the crime and the
victim’s and [the d]efendant’s intent”); cf. State v. Whiteman, 2000 UT App 283U, para. 3
(mem.) (affirming the trial court’s denial of a new trial due to newly discovered
evidence of the victim’s gang affiliation and gang tattoos where there was no evidence
that the defendant was aware of that affiliation at the time of the murder); State v. Kandt,
1999 UT App 276U, para. 2 n.1 (mem.) (rejecting the defendant’s claim of ineffective
assistance of counsel where the defense strategy was to establish that the victim falsely
accused the defendant of assault “because of a longstanding grudge which arose as a
result of the victim’s and defendant’s rival gang affiliation”).
¶24 In this court’s recently published decision, State v. Toki, 2011 UT App 293, 263
P.3d 481, cert. denied, 272 P.3d 168 (Utah 2012), we considered the proper limits on such
testimony. See id. ¶ 45 (citing Milligan, 2010 UT App 152U, para. 6). In Toki, the
defendant was convicted of discharging a firearm from a vehicle with an in concert
enhancement and possession of a dangerous weapon by a restricted person. See id. ¶ 1.
At trial, the State offered the testimony of a gang expert, whose definition of a gang
included that it “had to be engaged in criminal activity.” See id. ¶ 12. The expert also
testified that the codefendants were both members of a gang known as TCG, and
described the monikers, tattoos, and clothing typically adopted by TCG members. See
id. Throughout his testimony, the gang expert interspersed comments about “our gang
problem,” the criminal activities of gangs, the importance of gang monikers during
criminal activity, the use of blue bandanas as a disguise when “putting in work” for
TCG, and his experiences with law enforcement gang units and gang crime
investigations generally. See id.
¶25 On appeal, Toki claimed that this extensive evidence, “by extension,” implicated
him in TCG’s criminal activity. See id. ¶ 41. This court first determined that the
evidence relating to the codefendants’ identity and membership in TCG was relevant to
the “in concert” enhancement. See id. ¶¶ 42, 45. Next, we noted that the only fact
witness who could provide evidence on these issues was subject to impeachment due to
her level of intoxication during the incident and her false allegation that one of the
20100668‐CA 12
defendants had raped her. See id. ¶ 42. Based on these considerations, we concluded
that the trial court did not exceed its discretion in determining that the expert testimony
on these points was more probative than unfairly prejudicial. See id. ¶ 45. We also
concluded, however, that “[a] great deal of [the expert’s] testimony was clearly
irrelevant to the charged offenses, particularly [his] gratuitous statements about ‘our
gang problem,’ criminal activities of gangs, and his investigation of gang crimes,” and
that the “trial court erred by admitting that part of [the expert’s] testimony and by
failing to control the scope of the testimony when it exceeded appropriate limits.” See
id. ¶¶ 45‐46 (citing Milligan, 2010 UT App 152U, para. 6). Nevertheless, we concluded
that the error was harmless because “the prosecutor did not did not take unfair
advantage of the gang‐related testimony,” and instead informed the jury of the limited
scope of the gang evidence’s relevancy. See id. ¶¶ 47‐48. Additionally, Toki’s
codefendant was acquitted despite the improperly admitted gang evidence, which
constituted just a “small part” of the proceedings. See id.
¶26 From these decisions it is apparent that while “no Utah precedent has stated that
gang references automatically taint juries,” we have viewed such evidence with caution
due to the risk that it may carry some unfair prejudice. See id. ¶ 45 n.8; see also Milligan,
2010 UT App 152U, para. 6 (“[T]here may be some unfair prejudice inherent in making
the jury aware of gang affiliation.”). Other jurisdictions have also recognized that
“‘[g]uilt by association is a genuine concern whenever gang evidence is admitted.’” See
United States v. Harris, 587 F.3d 861, 867 (7th Cir. 2009) (quoting United States v.
Montgomery, 390 F.3d 1013, 1018 (7th Cir. 2004)); see also United States v. Ellison, 616 F.3d
829, 833 (8th Cir. 2010) (“Gang related evidence is inadmissible if its purpose is solely to
prejudice the defendant or prove his guilt by association with unsavory characters.”
(internal quotation marks omitted)); United States v. Jernigan, 341 F.3d 1273, 1285 (11th
Cir. 2003) (“[A]n individual’s [gang] membership . . . is likely to provoke strong
antipathy in a jury.”). The New Mexico Supreme Court explained that gang references
may lead the jury to “‘attach a propensity for committing crimes to defendants who are
affiliated with gangs or [allow its] negative feelings toward gangs [to] influence its
verdict.’” State v. Torrez, 2009‐NMSC‐029, ¶ 24, 146 N.M. 331, 210 P.3d 228 (quoting
United States v. Irvin, 87 F.3d 860, 865 (7th Cir. 1996)). In addition, that court expressed
concern that “evidence of gang affiliation could be used improperly as a backdoor
means of introducing character evidence by associating the defendant with the gang
and describing the gang’s bad acts.” Id. (internal quotation marks omitted).
20100668‐CA 13
¶27 In the appropriate context, “gang evidence has probative value warranting its
admission over claims of prejudice.” See, e.g., Irvin, 87 F.3d at 864; see also Toki, 2011 UT
App 293, ¶¶ 42‐45 (holding that gang evidence was relevant to prove an “in concert”
enhancement); Milligan, 2010 UT App 152U, para. 3 (stating that gang evidence may be
highly relevant to show motive or identity if the evidence makes it “more probable”
that a defendant is culpable). Although the jury “is likely to associate gangs with
criminal activity and deviant behavior, such that the admission of gang evidence raises
the specter of guilt by association or a verdict influenced by emotion,” that risk of
prejudice “does not render it automatically inadmissible.” United States v. Santiago, 643
F.3d 1007, 1011 (7th Cir. 2011) (internal quotation marks omitted). Instead, the evidence
must be carefully examined to allow the State to present its case, without straying into
marginally relevant and highly prejudicial areas. When that line is crossed, the
defendant is entitled to a new trial. See, e.g., United States v. Street, 548 F.3d 618, 623,
629‐33 (8th Cir. 2008) (holding that expert testimony “to illustrate the violent, lawless
propensities of outlaw motorcycle gangs” was “excessive, unduly prejudicial, and in
great part completely irrelevant to the charged offenses”); People v. Bojorquez, 128 Cal.
Rptr. 2d 411, 415‐16, 418 (Cal. Ct. App. 2002) (holding that evidence of the defendant’s
gang affiliation was probative of bias and credibility, but that it was prejudicial error to
allow further testimony that the gang participated in illegal activity, including robbery,
and that the gang killed witnesses who testified against it).
IV. The Trial Court’s Admission of the Gang Activity Evidence Was Not Prejudicial
Error
¶28 Trial courts play an important role in determining whether and to what extent
gang‐related evidence should be admitted because they are in the best position to make
these nuanced and fact‐dependent decisions. See State v. Sellers, 2011 UT App 38, ¶ 23,
248 P.3d 70 (“[T]he trial court is in the best position to make initial judgments about the
admissibility of evidence within the context of a trial.”); State v. Northcutt, 2008 UT App
357, ¶ 17, 195 P.3d 499 (“[T]he trial court is in the best position to . . . determine whether
to admit evidence of prior bad acts.”). Therefore, in determining whether the trial court
exceeded its discretion in admitting evidence of other bad acts, we review whether the
trial court “scrupulously examined” “the admission of other bad acts evidence.” See
State v. Nelson‐Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120 (internal quotation marks
omitted). If the trial court has carefully considered the issue, we defer to its advantaged
position to assess the impact of the evidence in the context of the trial, absent an abuse
20100668‐CA 14
of discretion. See State v. Burke, 2011 UT App 168, ¶ 44, 256 P.3d 1102, cert. denied, 263
P.3d 390 (Utah 2011). But where a trial court fails to do so, we may assume it has
exceeded its discretion. See State v. Ferguson, 2011 UT App 77, ¶ 18, 250 P.3d 89, cert.
denied, 262 P.3d 1187 (Utah 2011). Nevertheless, we will not overturn the defendant’s
conviction unless the error was harmful. See id. ¶ 19; State v. Hildreth, 2010 UT App 209,
¶ 52, 238 P.3d 444 (McHugh, J., concurring) (undertaking a 404(b) analysis to determine
whether the trial court’s error in failing to conduct such an analysis was harmful).
¶29 In examining the evidence, a trial court must first decide whether it is “offered
for a proper, noncharacter purpose.” See Nelson‐Waggoner, 2000 UT 59, ¶ 18. If the
evidence’s purpose is “only to show the defendant’s propensity to commit crime,” it
must be excluded. See id. (internal quotation marks omitted). The court must then
decide whether the evidence “meets the requirements of rule 402, which permits
admission of only relevant evidence.” Id. ¶ 19; see also Utah R. Evid. 401‐402. Even if
the evidence is relevant for a proper, noncharacter purpose, it “‘may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice.’” See
Nelson‐Waggoner, 2000 UT 59, ¶ 20 (quoting the then‐current version of Utah R. Evid.
403). To determine whether the bad acts evidence violates rule 403, courts consider a
number of factors (the Shickles factors), which include the following:
[T]he strength of the evidence as to the commission of the
other crime, the similarities between the crimes, the interval
of time that has elapsed between the crimes, the need for the
evidence, the efficacy of alternative proof, and the degree to
which the evidence probably will rouse the jury to
overmastering hostility.
State v. Shickles, 760 P.2d 291, 295‐96 (Utah 1998) (internal quotation marks omitted),
quoted in Nelson‐Waggoner, 2000 UT 59, ¶ 20.
¶30 High argues that the trial court did not scrupulously examine the Gang Activity
Evidence both because the court failed to determine whether the evidence was offered
for a proper, noncharacter purpose, and because it failed to apply the Shickles factors.
See Nelson‐Waggoner, 2000 UT 59, ¶¶ 16‐20; Shickles, 760 P.2d at 295‐96. High further
contends that the error was prejudicial because the evidence was offered only to prove
20100668‐CA 15
his “propensity for engaging in violent gang activities” which “had a high probability of
rousing the jury to overmastering hostility.”
¶31 The State counters that the evidence is relevant and probative of the “in concert”
enhancement, to rebut High’s self‐defense claim, and to explain the circumstances of the
fight. The State also argues that a trial court need not evaluate each Shickles factor to
conduct a proper rule 403 evaluation “as long as we can discern that it made a sufficient
inquiry.” See State v. Harter, 2007 UT App 5, ¶ 30, 155 P.3d 116. In the alternative, the
State contends that even if the trial court improperly admitted the Gang Activity
Evidence, any error was harmless because it was merely cumulative of other
unchallenged evidence admitted at trial.
¶32 We begin our analysis by reviewing the trial court’s deliberations with respect to
the challenged evidence. The trial court’s examination of the gang evidence began
before trial when the State announced its intent to introduce six pieces of evidence
relating to PVL: (1) that High is a member of PVL; (2) that High has “PVL” tattooed on
his hand; (3) that Cristobal is a member of PVL; (4) that on May 20, 2009, High
participated as a party to an assault, in concert, on the Trail; (5) that High knowingly
committed the prior assault in concert with three or more others, including Cristobal;
and (6) that PVL claims the Trail as its territory. Despite its position on appeal that
404(b) is inapplicable, the State argued at trial that each of these pieces of evidence was
admissible under rule 404(b). In doing so, it identified the noncharacter purposes of the
evidence, discussed its relevance, and argued that it was more probative than
prejudicial, as required under a 404(b) analysis. The State assured the trial court that it
was not trying to “bring in a bunch of evidence about gang stuff that is going to be
detrimental to the defendants, because . . . that is a touchy issue.” Instead, the State
indicated that it wanted to “bring in the fact that the defendants have an association
with PVL, to be able to help deal with the issues of whether they were acting in
collusion[,] in concert with one or more persons.”
¶33 In response, High’s counsel discussed the three‐part inquiry required under rule
404(b) and how it applied to the proposed evidence.15 Although acknowledging that his
tattoo was relevant to show that the initials on his wrist matched those shouted after the
15
Neither the State nor High expressly referred to the Shickles factors in the trial
court.
20100668‐CA 16
confrontation with Big Brother and Little Brother, High argued that the State could not
introduce evidence that PVL stands for the name of a gang. High urged the trial court
to exclude the evidence both because the State had not designated an expert on that
point and because the evidence would be more prejudicial than probative. The State
agreed that “it would be impermissible for the State to, in essence, go into what would
be expert testimony to establish what is PVL,” but asserted that if the defendants took
the stand, it was entitled to obtain this information through them.
¶34 After considering the briefs and oral argument, the trial court permitted the State
to introduce the proposed evidence that someone shouted “PVL” at the scene and that
High had “PVL” tattooed on his hand.16 With respect to the fact that the Trail was
considered by PVL to be part of its territory, the trial court ruled that this evidence
would be admitted only if the defendants testified. The trial court also excluded the
defendants’ prior felony convictions, reasoning that the fact and details of the
convictions were more prejudicial than probative. However, the trial court explained
that it would revisit the admissibility of the prior felonies if High and Cristobal testified.
Finally, because the defendants had not yet decided to testify, the trial court was
unwilling to decide whether doing so would “open the door” to further gang evidence,
as suggested by the State.
¶35 Trial commenced, and the jury heard some Gang Affiliation Evidence. When the
defendants indicated their intent to testify on their own behalf, the trial court conducted
another hearing outside the presence of the jury. The trial court first invited argument
on the admissibility of the defendants’ criminal records. The defendants asserted that
this question should be resolved under rule 609 of the Utah Rules of Evidence,
governing the impeachment of a witness by evidence of his conviction of crime.
Arguing against admissibility under rule 609, High addressed the following factors: (1)
the extent to which the evidence bears on the defendant’s propensity to testify
truthfully; (2) the recentness or remoteness of the prior conviction; (3) the similarity of
the prior crime to the charged crime; (4) the importance of credibility to the prosecution;
and (5) the importance of the accused’s testimony.
¶36 Next, the trial court raised the separate issue of the State’s ability “to probe
regarding gang affiliations and a variety of other things” and invited the State to
16
High does not challenge this evidence on appeal.
20100668‐CA 17
explain how the evidence related to rules 609 and 404(b) of the Utah Rules of Evidence.
The State first conceded that because the prior felony conviction is “exactly the same
felony as [the charged crime] . . . clearly under a 609 analysis” admitting the details of
the conviction “would be unduly prejudicial.” It argued, however, that if the
defendants took the stand, rule 404(b) did not prohibit the State from asking “a little bit
about what is the nature of [PVL].” In particular, the State claimed that the evidence
was needed to prove that the defendants acted in concert, to refute their self‐defense
claims, and because the fight began just after Big Brother called the defendants
“wannabe gangsters.” High argued that, despite its relevance, all of the gang evidence
was unfairly prejudicial beyond its probative value.
¶37 Before announcing its decision, the trial court correctly noted that evidentiary
rules 609, 404(b), and 403 were all implicated by the proposed evidence and that some
of the considerations underlying the rules overlapped. Looking at the similarity
between the prior felony and the charges at issue under rule 609, the trial court
concluded that the fact of the felony conviction could be admitted but that the details
would be excluded. With respect to the gang evidence, the trial court ruled, “[B]ecause
we have two or more acting in concert under the charges themselves; and by virtue of
the fact that there has already been evidence that has been admitted regarding a tattoo
on . . . High’s hand, . . . [and that] someone yelled something about PVL, that can be
explored.” The court later clarified that the State could ask the defendants “generic
types of questions” about “what is PVL, and how long have you been associated with it,
and are you both . . . members, do you know each other in connection with that.” Due
to the difficultly of predicting how the defendants would testify, however, the trial
court “instructed Counsel that they’re going to have to object if they believe that it
oversteps into areas that . . . can’t be explored.” The jury was then reseated and the trial
continued.
¶38 When High objected to the Gang Activity Evidence, the sidebar conference with
the trial court was not recorded. At the close of evidence, High placed the substance of
that discussion on the record and asked for a mistrial based on the introduction of the
Gang Activity Evidence. The trial court denied the motion, explaining,
[W]hen you have someone that’s involved in an assault,
whether it’s a defense, whether they initiate it, and they have
gang tattoos on their hands, or paraphernalia or anything
20100668‐CA 18
else, and when at the conclusion of that assault . . . they yell
out the affiliation[,] then they take the witness stand in
connection with the case, it opens the door.
¶39 It is apparent from this record that the trial court was aware of the sensitivity of
the gang evidence, allowed the parties to be heard regarding its admissibility at various
stages of the proceedings, and carefully considered its relevance and prejudicial effect.
Although the parties failed to mention the Shickles factors in the briefs or argument to
the trial court, many of them were considered and discussed. For example, in deciding
whether the details of High’s prior felony conviction should be admitted under rule 609,
the trial court considered similarity, remoteness, and whether the risk of prejudice was
outweighed by the probative value of the evidence. While there is no discussion on the
record about the strength of the evidence, the fact that High and Cristobal had pleaded
guilty to the prior felony and were punished accordingly was known to both the trial
court and the parties. Likewise, the information included the date of the prior
conviction and thus, the interval of time between it and the events from which the
current charges arose.17 The trial court also considered the relevance of the evidence to
the “in concert” enhancement. With respect to the prejudicial nature of the details of
the prior felony conviction, the trial court concluded that they were so similar as to be
unfairly prejudicial beyond their probative value and the State agreed. Thus, we
conclude that the trial court scrupulously examined the details of the prior felony
convictions before holding that they could not be admitted.
¶40 Despite the trial court’s ruling that the State could not introduce the fact that
High and Cristobal had been convicted of a felony as a result of their joint participation
in a fight on the same Trail where the charged offenses occurred, it permitted the State
to elicit much of that same evidence from High on cross‐examination. High testified
that he had participated in gang fights over territory in Provo during his four‐year
membership in PVL. As a result, some of the details excluded as too prejudicial under
rule 609 because they were “exactly the same” crime as charged were admitted under
rule 404(b). While this reflects an apparent inconsistency between the trial court’s
rulings, the discrepancy does not equate with error. A trial court may modify or
reverse a prior ruling any time before final judgment. See IHC Health Servs., Inc. v.
17
The defendants had entered the guilty pleas only about two months before the
altercation with the two brothers.
20100668‐CA 19
D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 196 P.3d 588. This allows the trial court to evaluate
the current circumstances and, with respect to evidentiary rulings, assess admissibility
in light of the quality and quantity of the evidence previously admitted. However,
because the record does not reflect the trial court’s reasoning, we assume, for the
purpose of analysis only, that it did not scrupulously examine the Gang Activity
Evidence. Therefore, we now proceed to the question of whether the admission of the
Gang Activity Evidence was harmful.
V. The Introduction of the Gang Activity Evidence Was Harmless
¶41 We will not disturb the jury’s verdict unless “the likelihood of a different
outcome [is] sufficiently high to undermine confidence in the verdict.” See State v. King,
2010 UT App 396, ¶ 23, 248 P.3d 984 (internal quotation marks omitted); see also Utah R.
Crim. P. 30(a) (“Any error . . . which does not affect the substantial rights of a party
shall be disregarded.”). “‘Harmless errors are those that are sufficiently inconsequential
so no reasonable likelihood exists that the error affected the outcome of the
proceedings.’” State v. Ferguson, 2011 UT App 77, ¶ 19, 250 P.3d 89 (quoting C.T. ex rel.
Taylor v. Johnson, 1999 UT 35, ¶ 18, 977 P.2d 479), cert. denied, 262 P.3d 1187 (Utah 2011).
We must therefore decide whether the Gang Activity Evidence was so prejudicial that it
undermines our confidence in the verdict. To determine that a trial court’s failure to
conduct a proper 404(b) examination was harmless, one approach is to assess whether
the evidence would have been admitted had the trial court undertaken the proper
review. Put simply, if a scrupulous examination would have resulted in the evidence
being admitted, the trial court’s failure to conduct that examination has not harmed the
defendant. In the alternative, we may assume that a scrupulous examination would
have resulted in the exclusion of the evidence but that there is no reasonable likelihood
that the assumed error affected the outcome. See id. ¶¶ 19‐20; State v. Hildreth, 2010 UT
App 209, ¶ 52, 238 P.3d 444 (McHugh, J., concurring). Here, we use both methods of
assessing prejudice, determining that some evidence would have been admitted despite
application of the Shickles factors, and that other evidence was not reasonably likely to
have affected the outcome of the proceeding.
A. Some of the Gang Activity Evidence Was Properly Admitted Under Rule 404(b)
¶42 We now examine the Gang Activity Evidence under rule 404(b) to determine
whether it was properly admitted. For purposes of this analysis, we consider the Gang
20100668‐CA 20
Activity Evidence challenged by High to consist of three facts:18 (1) that the braver and
more aggressive a PVL member is, the higher his status in the gang (status testimony);
(2) that one of PVL’s purposes is to fight rival gangs for territory (rival gang testimony);
and (3) that High has participated in such fights and that he understands that this is
probably illegal (illegal prior fights testimony).19
1. The Fact that PVL Members Gain Status by Engaging in Aggressive
Behavior
¶43 To begin, we address the status testimony. The first step of that analysis is to
determine whether the evidence was offered for a proper, noncharacter purpose. See
State v. Killpack, 2008 UT 49, ¶ 45, 191 P.3d 17 (stating that evidence of other bad acts is
admissible if it “(1) is relevant to, (2) a proper, non‐character purpose, and (3) does not
pose a danger for unfair prejudice that substantially outweighs its probative value”
(internal quotation marks omitted)). We agree with the State that the status testimony
was relevant to the proper noncharacter purpose of proving motive. See, e.g., People v.
Garcia, 85 Cal. Rptr. 3d 393, 408‐09 (Cal. Ct. App. 2008) (holding that an expert’s
testimony that “gang members increase their respect within their set and the
community through acts of violence and intimidation” was properly admitted to prove
motive and intent); Willoughby v. State, 626 S.E.2d 112, 114 (Ga. 2006) (holding that the
trial court did not err in admitting evidence that “gang members could advance in rank
by committing crimes” to establish motive); State v. Yarbrough, 210 P.3d 1029, 1038
(Wash. Ct. App. 2009) (“The gang‐related evidence was also highly probative of the
State’s theory of the case . . . that [the defendant] murdered [the victim] to advance his
18
High does not challenge the evidence that Provo is within the territory claimed
by PVL (territory testimony). This is the only piece of evidence challenged by
codefendant Cristobal that is not challenged by High. We therefore address this issue in
our decision in State v. Cristobal, 2012 UT App 181, issued with this decision.
19
We acknowledge that the state’s argument that the admissibility of the Gang
Activity Evidence is not governed by rule 404(b) may be more persuasive with respect
to some of this testimony, particularly the status testimony. Nevertheless, we discuss it
under rule 404(b) because a key part of the rule 404(b) examination is the balancing of
its probative value against the danger of unfair prejudice required under rule 403, the
evidentiary rule that the State asserts is more properly applicable. See supra ¶ 29.
20100668‐CA 21
position in his gang.”). But see State v. Ra, 175 P.3d 609, 615 (Wash. Ct. App. 2008)
(holding that where the State did not establish that the defendant was a gang member,
the trial court committed prejudicial error in admitting evidence that “portrayed [the
defendant] and his companions as inherently ‘bad guys,’ willing to commit the most
serious acts of violence to elevate their status in the group”).
¶44 Furthermore, the status testimony made it more likely that High and Cristobal
instigated the conflict. As a result, the evidence is also admissible under rules 401 and
402. See Utah R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.”); Utah R. Evid. 402 (“Relevant evidence is
admissible unless any of the following provides otherwise: the United States
Constitution; the Utah Constitution; a statute; or rules applicable in courts of this state.
Irrelevant evidence is not admissible.”).
¶45 We are likewise convinced that the status testimony “does not pose a danger for
unfair prejudice that substantially outweighs its probative value.” Killpack, 2008 UT 49,
¶ 45 (internal quotation marks omitted); see also Utah R. Evid. 403. In reaching that
determination, we consider the Shickles factors to assess admissibility under rule 403.
See State v. Allen, 2005 UT 11, ¶ 24, 108 P.3d 730 (identifying the Shickles factors). First,
“the strength of the evidence” is significant because High, a gang member with
knowledge of these matters, provided the information, and it was against High’s
interests to do so. See id. (internal quotation marks omitted). However, the testimony
does not discuss a particular event, and therefore provides no basis to assess its
“similarit[y]” to the charged crime. See id. In addition, High agreed with the State’s
present‐tense statement, “So the more that you do or the braver you are or the more
aggressive you are, that gives you status.” Thus, there also appears to be no “interval of
time” between the other act and the charged offense. See id. We also consider “the need
for the evidence” and “the efficacy of alternative proof.” See id. (internal quotation
marks omitted). As High contends, the conflicting testimony here created a credibility
contest between the brothers and the defendants. While the State could argue that High
and Cristobal attacked because they were insulted by Big Brother’s “wannabe
gangsters” comment, the jury may not have been convinced due to the fact that Big
Brother had a criminal record and because the police found a pool cue at the scene
consistent with the defendants’ version of events. Thus, the added fact that the PVL
members would achieve greater status within the gang for attacking Big Brother and
20100668‐CA 22
Little Brother was necessary to explain the defendants’ motivation. Cf. State v. Toki,
2011 UT App 293, ¶ 42, 263 P.3d 481 (concluding that some gang evidence was properly
introduced to prove identity where a witness who could provide alternative proof of
identity might not be found credible by the jury because of inconsistencies in her
testimony), cert. denied, 272 P.3d 168 (Utah 2012). For the same reasons, the State needed
the evidence to refute High’s and Cristobal’s claims that they acted in self‐defense.
¶46 By the time the State elicited this testimony, the jury knew of High’s and
Cristobal’s gang membership, the fact that they shouted “PVL” when fleeing from the
scene, that High bears the initials “PVL” on his hand, and that PVL is a gang. The
added fact that members of PVL gain status through aggressive behavior, including
fighting, was not likely to increase significantly whatever prejudice the defendants had
already suffered due to the gang evidence already admitted. See id. ¶¶ 45‐46.
¶47 After carefully considering the evidence under rule 404(b), including the
application of the Shickles factors, we conclude that the trial court properly admitted the
status testimony. Therefore, High was not prejudiced by its admission.
2. The Fact that One of PVL’s Purposes Is to Fight Rival Gang Members for
Territory
¶48 We next consider the rival gang testimony. Although evidence that gangs fight
each other may be probative to rebut a self‐defense claim in some instances, see, e.g., Utz
v. Commonwealth, 505 S.E.2d 380, 387 (Va. Ct. App. 1998) (holding that expert testimony
about gang culture was admissible to rebut a self‐defense claim), it had limited utility
for that purpose here because nothing in the evidence suggests that either brother was a
member of a rival gang. See State v. Scott, 213 P.3d 71, 75‐76 (Wash. Ct. App. 2009)
(holding that gang affiliation evidence should have been excluded where the
prosecution did not also present evidence connecting the defendant’s gang membership
to the crime). Thus, the evidence was not specifically probative of the issues in the case.
Cf. United States v. Irvin, 87 F.3d 860, 864‐66 (7th Cir. 1996) (holding that evidence of
gang affiliation was irrelevant and highly prejudicial where no evidence linked the
gang to the crime); Smith v. State, 355 S.W.3d 138, 154‐55 (Tex. App. 2011) (holding that
evidence of the defendant’s gang affiliation was properly excluded where neither party
“adduced evidence that the altercation leading to [the victim’s] death was gang‐
related”). Furthermore, there is some risk that the jury would infer that High
20100668‐CA 23
participated in such fights in the past and acted in accordance with that aggressive
conduct on the night of the encounter with the brothers. For these reasons, we assume
for the purpose of our analysis that this evidence should have been excluded.
3. The Fact that High Participated in Fights with Rival Gangs Despite His
Understanding that It Was Probably Illegal
¶49 We next consider whether the evidence that High had participated in fights
against rival gangs, despite his understanding that such activity was probably illegal,
should have been excluded. First, when the trial court considered High’s prior
conviction for engaging in a gang fight on the Trail, it excluded such details as unduly
prejudicial. Second, the evidence implicates High directly in violent conduct that he
admits might be illegal. Third, because the fights were between rival gangs, the
evidence has limited relevance to the motive for attacking non‐gang members like the
brothers. Fourth, the evidence may imply that High is a violent person who violates the
law with impunity and, therefore, had the propensity to instigate the present conflict.
Consequently, we assume for purposes of our analysis that the trial court should have
excluded the illegal prior fights evidence. Cf. State v. Milligan, 2010 UT App 152U,
paras. 4‐5 (mem.) (holding that an explanation of general gang practices relating to the
punishment of a “snitch” was properly admitted, but concluding that the trial court
erred when it admitted evidence that the defendant, himself, had displayed his gun to
warn a fellow gang member to “take the punishment he had coming for a violation of
gang rules”), cert. denied, 238 P.3d 443 (Utah 2010).
B. Any Error in Admitting the Evidence Was Harmless
¶50 Despite assuming that the rival gang and illegal prior fights testimony should
have been excluded, we will not overturn the jury’s verdict “if the admission of the
evidence did not reasonably [a]ffect the likelihood of a different verdict.” See State v.
Houskeeper, 2002 UT 118, ¶ 26, 62 P.3d 444. In doing so, we first acknowledge that this is
not a case where the evidence of guilt was overwhelming, even in the absence of the
evidence. Cf. State v. Ferguson, 2011 UT App 77, ¶ 19, 250 P.3d 89 (concluding that error
in admitting 404(b) evidence was harmless because the other evidence of the
defendant’s guilt was overwhelming), cert. denied, 262 P.3d 1187 (Utah 2011). High’s
20100668‐CA 24
conviction was based almost entirely on the brothers’ testimony,20 making witness
credibility the cornerstone of the case. In addition, the physical evidence of the
brothers’ injuries was consistent with either version of events, and there were no
disinterested witnesses who could testify as to what transpired. Ultimately, the jury
had to decide whether the brothers or the defendants were telling the truth. While the
fact that both High and Cristobal had prior felony convictions may have weighed
against their credibility in the eyes of the jury, Big Brother’s admission that he had prior
convictions for drug possession with intent to distribute, burglary, and shoplifting was
likely also concerning to the jury.
¶51 Even if the evidence had been excluded, however, the jury would still have heard
unchallenged and properly admitted gang evidence, including testimony that PVL is a
street gang; that High is a member of PVL; that Cristobal was a member until shortly
before the incident; that High, Cristobal, and the Third Man shouted “PVL” and flashed
“signs” while fleeing; and that High had a “PVL” tattoo on his hand. The jury also
knew that High and Cristobal had been members of the PVL gang together for four
years and that PVL stood for a gang known in English as the “Provo Neighborhood
Crazies.” Furthermore, we have concluded that the trial court properly admitted
evidence that PVL members fight to gain status within the organization, which
considers Provo its territory. While the extent of this evidence suggests that the State
had little need for additional gang evidence, it also lessens the impact of any improperly
admitted evidence.
¶52 In light of High’s long‐term gang affiliation and his admitted participation in a
violent altercation that left Big Brother bleeding from a head wound, the fact that High
has been in gang fights in the past, despite knowing that they are probably illegal, was
unlikely to increase by any significant degree the negative impact of the properly
admitted gang evidence. See State v. Milligan, 2010 UT App 152U, para. 5 (mem.)
(holding that “in light of the other evidence properly before the jury,” the improper
gang evidence had no “likelihood of affecting the outcome of the proceedings”), cert.
denied, 238 P.3d 443 (Utah 2010); see also United States v. Santiago, 643 F.3d 1007, 1012 (7th
Cir. 2011) (holding that improper admission of some gang evidence was harmless error
because “[a]ny impact [that] the additional statements regarding the gang had on the
20
The jury also heard testimony by two investigating police officers who were not
present during the altercation.
20100668‐CA 25
jury would have been very slight”), cert. denied., 132 S.Ct. 1062 (2012); Gutierrez v. State,
32 A.3d 2, 16 (Md. 2011) (holding that although evidence that the MS‐13 gang was
particularly violent was irrelevant, its improper admission was harmless because
“[o]ther properly admissible evidence established that [the defendant] was affiliated
with MS‐13 and had traveled into rival gang territory looking for someone to kill as part
of his initiation”).
¶53 In addition, the State did not refer to any of the gang evidence in summation and
the improper evidence is contained in seventeen lines of testimony over a two‐day trial
with over 400 pages of transcript. See State v. Toki, 2011 UT App 293, ¶ 47, 263 P.3d 481(holding error in improperly admitting gang evidence was harmless where it was “a
small part of the big picture—just thirteen pages out of the 681‐page transcript”), cert.
denied, 272 P.3d 168 (Utah 2012); Milligan, 2010 UT App 152U, para. 6 (“[T]he periodic
references to gangs—the vast majority of which were proper—were of short duration
and were spread out over three days of trial”). Furthermore, the trial court instructed
the jury that it could not consider the gang evidence “as proof that either Defendant is
prone or inclined to commit crimes generally or the crimes charged in this case
specifically,” admonished the jury that “[n]either Defendants’ character traits are
relevant in this trial,” and explained that the gang evidence was admissible to show
only “motive, opportunity, intent, preparation, plan, knowledge, or identity.” Cf. State
v. Widdison, 2000 UT App 185, ¶ 31, 4 P.3d 100 (reasoning that the trial court’s jury
instruction as to the proper use of bad acts evidence “limited its effect”). We assume
that the jury acted in accordance with this instruction in rendering its verdict. See State
v. Nelson, 2011 UT App 107, ¶ 4, 253 P.3d 1094 (acknowledging the general presumption
that “‘a jury will follow the instructions given it,’” unless the facts indicate otherwise
(quoting State v. Menzies, 889 P.2d 393, 401 (Utah 1994))), cert. denied, 255 P.3d 684 (Utah
2011). Finally, the trial court limited the State’s questioning to some degree and
excluded evidence that the defendants’ prior felony convictions arose out of their joint
participation in a fight on the Trail.
¶54 Considering all of these factors, the presumed improper admission of the rival
gang and illegal prior fights testimony does not undermine our confidence in the jury’s
verdict. While we caution against the cumulative and excessive use of such evidence,
under the particular facts and circumstances present here, we are convinced that any
presumed error was harmless. See, e.g., Toki, 2011 UT App 293, ¶¶ 47‐48; Milligan, 2010
UT App 152U, para. 6.
20100668‐CA 26
CONCLUSION
¶55 Even assuming that some of the Gang Activity Evidence was improperly
admitted, we are convinced that any assumed error was harmless because of the
extensive properly admitted gang evidence, the trial court’s limiting instruction to the
jury, the State’s restraint in not mentioning the gang evidence during closing argument,
and the minimal references to the improper evidence in the context of the entire trial.
¶56 Affirmed.
____________________________________
Carolyn B. McHugh,
Presiding Judge
‐‐‐‐‐
¶57 WE CONCUR:
____________________________________
William A. Thorne Jr., Judge
____________________________________
Michele M. Christiansen, Judge
20100668‐CA 27